Judicial Elections, Party Primaries on Thursday's Ballot

Voters in Tennessee will go to the polls Thursday to vote on judicial races and party primaries for general assembly seats. A report compiled by the Tennessee Bar Association shows that while the number of lawyers serving in the legislature has declined over the last several years, more lawyers are candidates this year than in the last two election cycles. See a list of the 25 lawyers running for election this year. In related news, the Secretary of State’s office recently announced that 326,876 Tennesseans voted early – shattering the previous participation record set in 2008. The office also reminds voters that they now must present an ID containing their name and photograph to cast a ballot. For information about polling places or voting requirements visit www.GoVoteTN.com or call (877) 850-4959.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

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No appearance on behalf of the appellee, Estate of Willie Juanell Campbell.

Judge: SUSANO

In this appeal, numerous beneficiaries under a will challenge the trial court’s order awarding attorney’s fees of $9,024.75 out of the funds of the estate to another beneficiary who is their adversary. At an earlier time, the court had entered an order setting the attorney’s fees of that beneficiary at $34,669.25 without specifying who was responsible for the payment of those fees. On the motion of that beneficiary, the court granted a new trial on the subject of attorney’s fees. When the matter came on for the “new trial,” the court announced that it would listen to argument but would not receive substantive evidence on the subject. Following that “hearing,” the court awarded the fees now before us. The court’s order does not articulate any findings with respect to whether the attorney’s services were reasonable, necessary or benefited the estate. The “challenging” beneficiaries filed a notice of appeal.1 We vacate the order awarding attorney’s fees and remand to the trial court with instructions to conduct an evidentiary hearing and enter an order on attorney’s fees complying with Tenn. R. Civ. P. 52.01.

The plaintiff, a public official, sued the defendants for libel and false light invasion of privacy. The defendants filed a motion for summary judgment based on the truth of the statements. The plaintiff sought to complete discovery before the motion was heard. The trial court granted the defendants’ motion and plaintiff appealed. We affirm the grant of summary judgment as to the libel claims, but reverse the grant of summary judgment as to some of the false light claims.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Dawn Jordan, Senior Counsel, for the appellee, State of Tennessee.

Judge: SWINEY

Rebecca W. Ford (“Plaintiff”) sued the State of Tennessee (“State”) regarding a motor vehicle accident that resulted in the death of Plaintiff’s daughter, Lynsey M. Ford. After a bench trial, the Trial Court entered its judgment finding and holding, inter alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J), and that the actions of Zachary L. Robinson were the sole proximate cause of the accident. Plaintiff appeals to this Court. We reversed the Trial Court’s judgment as to Zachary L. Robinson being solely at fault, and held that the State was 50% at fault for the Accident in our Opinion in Robinson v. State, docket No. E2011-01540-COA-R3-CV (“Robinson v. State”), released contemporaneously with this Opinion. We, therefore, remand this case to the Trial Court for the calculation of damages awarded to Plaintiff from the State for the death of Lynsey M. Ford.

Mary G. (“Foster Mother”) filed a petition in the Chancery Court for Putnam County (“the Trial Court”) to adopt Haily A. S. (“the Child”) , then under the 1 guardianship of the Tennessee Department of Children’s Services (“DCS”). The Child’s paternal grandparents, Marvin S. and Sandra S. (“the Grandparents”), filed an intervening petition to adopt the Child and shortly thereafter filed a motion to intervene. DCS filed a motion to dismiss the Grandparents’ petition. After a hearing at which the parties’ respective counsels made their arguments, the Trial Court granted DCS’s motion to dismiss the intervening petition for adoption. The Grandparents appeal, arguing that the Trial Court should have permitted them to present evidence on the issue of the Child’s best interest. We hold that because DCS, the Child’s guardian, did not consent to the Grandparents’ adoption of the Child, the Grandparents’ intervening petition properly was dismissed. We affirm the judgment of the Trial Court.

This case arose from a dispute between neighbors over the ownership of an elaborate stone and metal gate used for entry into both their residential properties. The predecessors-ininterest of the defendants installed the gate at their own expense, placing it on an easement over the plaintiffs’ adjoining lot. The plaintiffs decided to sell their house, and included a picture and a description of the gate in their real estate listing and advertisements. The defendants asserted that they owned the gate and compelled the plaintiffs’ realtor to remove all mention of the gate from sales materials. The plaintiffs then filed a complaint to quiet title. After a bench trial, the court found that the gate belonged to the defendants and dismissed the plaintiffs’ complaint. The plaintiffs argue on appeal that the trial court erred because the gate is a fixture and, thus, that it has become part of the plaintiffs’ property by operation of law. We affirm the trial court.

Melissa Thomas, Fayetteville, Tennessee, for the appellee, M.J.D., and R.D.

Judge: COTTRELL

The great aunt and the great-grandmother of a little girl obtained an emergency order giving them temporary custody of the child when she was less than eight months old. The child’s mother was informed that she was entitled to appear at a preliminary hearing and an adjudicative hearing on a more permanent custody order, but she failed to appear for those hearings. The trial court found that the child was dependent and neglected, and awarded custody of the child to her two older relatives. They subsequently filed a petition to terminate the parental rights of the mother on the grounds of abandonment and of persistence of conditions. The trial court found that both grounds were proved and granted the petition. We affirm the termination on the ground of persistence of conditions.

Buyer purchased used automobile and signed contract stating the vehicle was being sold “as is” and without any warranties. After the transaction was completed and Buyer complained to Seller that the power steering was not working properly, Seller agreed to credit Buyer’s account with the cost of repairing the power steering. Buyer was unwilling or unable to pay for the repair out of his own pocket, and Seller ultimately repossessed the vehicle. Buyer sued Seller for breach of contract and trial court awarded Buyer damages. Seller appealed and we affirm the trial court’s judgment. Seller modified the parties’ original contract when it agreed to compensate Buyer for the cost of repairing the vehicle.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Dawn Jordan, Senior Counsel, for the appellee, State of Tennessee.

Judge: SWINEY

Wade Robinson and Melanie Robinson (“Plaintiffs”) sued the State of Tennessee (“State”) regarding a motor vehicle accident that resulted in the death of Plaintiffs’ son, Zachary L. Robinson. After a bench trial, the Trial Court entered its judgment finding and holding, inter alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J), and that the actions of Zachary L. Robinson were the sole proximate cause of the accident. We find and hold that the evidence preponderates against the Trial Court’s findings that the State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(I), that the State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(J), and that Zachary L. Robinson was the sole proximate cause of the accident. We find and hold that Zachary L. Robinson was 50% at fault for the accident and that the State was 50% at fault for the accident.

This appeal arises out of a wrongful death action involving numerous defendants. We dismiss the appeal as to two defendants for failure to file a timely notice of appeal. We dismiss the appeal as to the remaining defendants for lack of a final judgment.

TN Court of Criminal Appeals

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Chuck Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Robert Jason Burgess, appeals from the Marshall County Circuit Court’s denial of post-conviction relief from his convictions for two counts of rape and two counts of possession with intent to sell a controlled substance, for which he is serving an effective twenty-six-year sentence. On appeal, the Petitioner contends that he did not receive the effective assistance of counsel. He also contends that the trial court erred in treating his letters as a petition for post-conviction relief. We affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; James Michael Taylor, District Attorney General; and Sherry Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Glenda Nash Clemmons, pled guilty in the Marion County Circuit Court to failure to appear in case numbers 8109 and 8721. In case number 8109, the trial court sentenced her to two years to be served as sixty days in jail and one year, ten months in community corrections. In case number 8271, the trial court sentenced her to three years to be served in community corrections and consecutively to the two-year sentence in case number 8109. Subsequently, the trial court revoked her community corrections sentences and ordered her to serve her effective five-year sentence in confinement. The appellant contends that the trial court erred by revoking her community corrections sentences and ordering her to serve her original sentences in confinement. She also contends that she did not receive all the jail credits to which she was entitled. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and Al Schmutzer, Jr., District Attorney General, Pro Tempore, for the appellee, the State of Tennessee.

Judge: OGLE

A Carter County Criminal Court Jury convicted the appellant, Wendi Nicole Garrison, of the second degree murder of the victim, Joshua Perry. The trial court imposed a sentence of sixteen years in the Tennessee Department of Correction. On appeal, the appellant argues that the evidence is insufficient to sustain her conviction, that the trial court erred in denying her request to charge assisted suicide as a lesser-included offense of second degree murder, and that the trial court erred in denying her request for a jury instruction regarding assisted suicide as a defense to second degree murder. Upon review, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Charles Michael Layne, District Attorney General; and Felicia B. Walkup, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jason Peter Meeks, was convicted of driving under the influence (DUI), violating the implied consent law, and leaving the scene of an accident, all misdemeanor offenses. The Defendant appeals pursuant to Rule 3, Tennessee Rules of Appellate Procedure, contending that he should be granted a new trial because the State failed to record his trial. We disagree with the Defendant’s claim and affirm the judgments of the trial court.

Ardena J. Garth, District Public Defender; and Richard Kenneth Mabee and Anna Protano- Biggs, Assistant District Public Defenders, for the appellant, Derrick Keith Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The Hamilton County Criminal Court grand jury charged the defendant, Derrick Keith Walker, with one count of attempt to commit the premeditated first degree murder of the victim, Charles Vandergriff, and one count of the aggravated assault of the victim. The defendant and the State entered into a plea agreement calling for dismissal of the attempted murder count and a plea of guilty to aggravated assault, a Class C felony, with a six-year Range I sentence to be served as 11 months and 29 days in confinement followed by supervised probation. The agreement provided for the defendant to pay $13,000 in restitution at the rate of $175 per month beginning on March 15, 2010. On December 17, 2009, the trial court entered a judgment that implemented the terms of the plea agreement. In August 2011, the State obtained a probation violation warrant claiming that the defendant garnered new arrests and had failed to pay restitution. Following a revocation hearing, the trial court revoked the defendant’s probation and ordered him into confinement to serve the balance of his sentence. In this appeal, the defendant claims that the trial court erred by revoking the probation and by ordering him to fully serve his original sentence. Because the record supports the order of the trial court, we affirm the order.

Today's News

Legal News

TBA Membership Benefits End Today

If you have not yet renewed your TBA 2012-2013 membership, which expired June 30, this will be your last issue of TBA Today. In addition, all other TBA member benefits and services – including Fastcase and access to members-only portions of the website – will end today. Don't miss out on any of these valuable services! Click here to renew online or call (615) 383-7421 to renew over the phone. For information about TBA membership benefits contact Membership Director Kelly Stosik at kstosik@tnbar.org or (615) 383-7421.

AG: OK to Deny Politicians Alternative Sentencing

A new Tennessee law that holds public officials more accountable for crimes related to their official position or duties is constitutional according to Tennessee Attorney General Bob Cooper. The law, passed by the legislature earlier this year makes elected or appointed officials ineligible for pre-trial diversion for offenses committed in their official capacity or duties of office. The opinion, requested by House Judiciary Committee Chairman Eric Watson, R-Cleveland, found that diversion would be considered “truly extraordinary relief” and not a “fundamental right.” The Times Free Press has more. Download the opinion

Court Clerks Resist Suspending Licenses

Court clerks throughout Tennessee now have the power to suspend driver’s licenses if court fees and fines go unpaid for a year. But no licenses have been suspended according to the Tennessee Department of Safety and Homeland Security. Even Tommy Bradley, chief administrative officer for the Davidson County Criminal Court Clerk’s Office and champion of the law, is holding off until Aug. 1 to give debtors one last chance to pay something. Bradley acknowledges there is “widespread” opposition to the law, which he pushed to help collect hundreds of millions in uncollected court costs. In fact, other clerks are questioning whether to suspend licenses at all, out of logistical or moral reservations. The new law also has created more work for attorneys as clients now want to persuade judges to waive their fees. Read more in the Tennessean

Suit Challenges Federal Role in Mosque Case

Opponents of a Rutherford County mosque filed suit late last week challenging a federal judge’s decision to open the mosque despite a county chancellor’s ruling that the mosque did not meet adequate notice requirements for construction. The attorneys, Joe Brandon Jr. of Murfreesboro and Tom Smith of Franklin, argue that mosque opponents are “victims” of the Islamic Center of Murfreesboro, the county’s zoning resolution and local government’s “violation of the Tennessee Open Meetings Act.” Smith addressed the federal intervention as well saying, “The federal district court can’t be an appellate court for a state court ruling.” Read more in the Tennessean

Reward Paid for Capture of Top-Ten Most Wanted

The Memphis and Jackson divisions of the Federal Bureau of Investigation, and the Tennessee Bureau of Investigation announced today payment of reward money to those responsible for providing information that led to the capture of former FBI and TBI Top-Ten Most Wanted Fugitive Adam Christopher Mayes. Law enforcement captured Mayes based on information generated as a direct result of the agency’s outreach to the public, authorities said in a news release today. To protect the safety, anonymity and privacy of those responsible for the information, neither agency would comment on who was paid or how much was paid. The Jackson Sun reports

Election 2012

Shelby Co. Voting Issues Make National News

National news outlets, including the Washington Post and Fox News, are reporting on early voting issues in Shelby County, which include distribution of incorrect ballots and a court challenge aimed at allowing voters to use library cards as official voter identification. State officials are closely monitoring the process, as is the U.S. Department of Justice. The department's Memphis division said today that assistant U.S. attorneys and FBI agents will be available this week to handle any complaints of election fraud and voter rights abuses.

Hearing Today on Library Card IDs

U.S. District Judge Aleta A. Trauger was to hold a hearing at 3 p.m. today on the city of Memphis’ second application for a preliminary injunction prohibiting state officials from blocking use of library photo identification cards for voting purposes. Tennessee law now requires a photo ID for voters and specifies which federal and state government-issued IDs are valid. The law does not allow IDs issued by local governments and does not explicitly authorize library cards, which the city of Memphis began issuing to those without other photo ID. Last week, U.S. District Judge Kevin Sharp – sitting in for Trauger – denied the city's request for a temporary restraining order. For today’s hearing, Trauger asked for more information, including the library's rules for issuing the cards. The Commercial Appeal has more

Upcoming

KBA Barristers Hold Summer Party

The Knoxville Barristers will hold its annual Summer Party on Friday from 7 to 10 p.m. at the Sunsphere at World's Fair Park. Tickets are $15 each and include a BBQ dinner. Beer and wine will be available for purchase. RSVP here. Attendees are asked to list the name of each individual who will be attending in the special instructions section if registering online with a credit card.

Golf Scramble Benefits CASA

CASA of Northeast Tennessee will hold its seventh Annual Golf Tournament on Aug. 20 at 11 a.m. at the Johnson City Country Club. Funds raised by the event will go to the local agency’s programs. Teams will play four-person scramble. Warm up and registration will take place 11 a.m. to 12 p.m., with a shotgun start at noon. Lunch will be provided, as will prizes for the longest drive and the ball closest to the hole. Donation amounts range from $25 to $100. Download an informational brochure

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.